Cyber Criminals on Trial

Russell G. Smith, Peter Grabosky + Gregor Urbas

Cyber Criminals on Trial is a broad-ranging study of the prosecution
and sentencing of cyber criminals in the English-speaking world.

An opening chapter argues for the term "cyber crime" rather than
"cybercrime", suggesting the latter could be used more narrowly for
"new criminal offences perpetrated in new ways" rather than "conventional
crimes involving new technologies". It considers overlaps with economic
crime, white collar crime and other categories, and takes a look at the
evidence from surveys for the extent and severity of cyber crime.

The prosecutor, as "gatekeeper", has to select crimes for prosecution,
choose charges, consider the alternative of civil remedies, and so
forth. These issues are not novel, of course: one thing that is new with
computer crime is the ease with which juveniles can commit serious crimes.
There are noticeable differences across jurisdictions.

"The comparative zeal with which American prosecutors pursue
perpetrators of piracy and intellectual property crime reflects
the power of the software and entertainment industries in the
United States."

Computers and networks have vastly increased the frequency of cross-border
offences and transnational crimes; cyber crime poses new challenges for
prosecutors in determining location and jurisdiction and in evaluating
the options for foreign prosecution or extradition. There are also
novel possibilities for direct action across borders.

"In the United States, authorities appear to be less constrained
in the use of undercover methods. So-called 'stings' and remote
cross-border searches conducted without the authority of the
host country would probably not occur in Australia, Canada or
the United Kingdom."

Special considerations in litigation of cyber crime include the
admissibility, volume, integrity, and possible encryption of the
evidence, the role of private vigilante action, the nature of intent,
and "imaginative" defences. The last two are particularly salient with
laws sanctioning possession of child pornography.

Harmonisation has seen both the extension of existing law and the
creation of new law. There have also been moves towards international
harmonisation (and national harmonisation within federal states), most
prominently through the development of model criminal codes such as the
Council of Europe's Convention on Cybercrime.

A theoretical survey of the objectives of judicial punishment reveals
nothing at all computer-specific. But cyber crime has created new options
such as restricted or monitored access to computers and networks, with
"courts beginning to adopt sanctions to suit the novel circumstances of
the cases".

Sentencing of cyber criminals involves familiar aggravating and mitigating
factors, with some unusual problems where superficially minor acts can
have drastic consequences. Analysis of statistics suggests that "courts
in different countries have not imposed sentences of a widely differing
nature" and there have been "few, if any, differences in approach"
between cyber and conventional cases.

Cyber Criminals on Trial is dry and, unsurprisingly given its scope,
rather general. Some meat is provided by references to specific cases,
however, and the sixty pages of appendix A offer summaries of 164
key cases.

The work is framed as an academic argument testing three hypotheses:
prosecution and judicial disposition of cyber crime cases are no different
to conventional cases; responses to cyber crime have been similar in
North America, Britain, and Australasia; and the use of computers in
the commission of crimes does not affect the severity of sentences.
This framework doesn't narrowly constrain the authors, however,
and they cover a much broader range.

Cyber Criminals on Trial will be most useful to legal professionals
involved with cyber crime, but it has something for anyone curious about
the treatment of cyber crime within the legal system. Some of the
material in it was new to me, but I also found it interesting to see
familiar territory covered from a different angle, from a perspective
slanted towards the prosecutorial.